Bonnie HUNT, Plaintiff and Appellee, v. Kay HUNT, Defendant and Appellant.
No. 13138.
Supreme Court of South Dakota.
August 26, 1981.
Rehearing Denied Sept. 22, 1981.
309 N.W.2d 818
For this reason, we dismiss the appeal.
All the Justices concur.
Steven L. Jorgensen, Sioux Falls, for plaintiff and appellee.
Gene Paul Kean of May, Johnson, Doyle & Becker, P. C., Sioux Falls, for defendant and appellant.
HENDERSON, Justice.
Appellant Kay Hunt appeals from a judgment entered pursuant to a jury verdict rendered in favor of appellee Bonnie Hunt, and also from the trial court‘s order denying various post-trial motions made by appellant. Appellee instituted an action to recover damages on two counts: alienation of affections and criminal conversation. The jury found appellant liable to appellee on both counts for an aggregate total of $50,000. Appellant urges this Court, inter alia, to abolish alienation of affections and criminal сonversation as causes of action in this state.
All five justices would abolish the action for criminal conversation in South Dakota. Two of the justices would also abolish the action for alienation of affections. Three of the justices would preserve the action for alienation of affections but concur in the result of the majority opinion for the reason that the evidence was insufficient to sustain the alienation of affections’ action. Accordingly, we reverse the judgment of the trial court.
ISSUES
I.
Did appellant raise the issue now urged on appeal at the trial court level? We hold that she did.
II.
Should the common law torts of alienation of affections and criminal conversation be judicially abolished? Chief Justice Wollman and I hold in the affirmative on both causes of action.
DECISION
I.
Appellee challenges appellant‘s right to now raise the issue of the abolition of the doctrines of alienation of affeсtions and criminal conversation due to appellant‘s alleged failure to present this question to the trial court. Estate of Assmus, 254 N.W.2d 159 (S.D.1977). By authority of
In American Technical Machinery Corporation v. Masterpiece Enterprises, Inc., 235 F.Supp. 917, 918 (M.D.Pa.1964), the court there held: “A motion to dismiss a complaint for failure to state a claim upon whiсh relief can be granted admits the facts alleged in the complaint, but challenges the plaintiff‘s right to relief.” A motion to dismiss under
II.
In light of our ultimate holding, we do not deem it necessary to recite the specific facts and circumstances which prompted this action. Suffice it to say that appellee brought suit against appellant for the purpose of recovering dаmages for (1) alienation of affections and loss of consortium allegedly caused by appellant‘s interference with the marriage of appellee and her ex-husband and (2) carnal intercourse with her ex-husband.
The essential elements of a cause of action for alienation of affectiоns are: (1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) a causal connection between such conduct and loss. Morey v. Keller, 77 S.D. 49, 85 N.W.2d 57 (1957). The tort of criminal conversation allows one to maintain an action for damages if it is shown that his or her spouse committed adultery with the defendant; the only defenses to this action are consent by the plaintiff or the statute of limitations. Giltner v. Stark, 219 N.W.2d 700 (Iowa 1974); see Pearsall v. Colgan, 76 S.D. 241, 76 N.W.2d 620 (1956). “Criminal conversation . . . and alienation of affections still are often treated as separate torts, but there is no good reason for distinguishing them. They [both] represent . . . forms of interference with aspects of the same relational interеst, and . . . may be present in the same case.” W. Prosser, The Law of Torts § 124, at 876-877 (4th ed. 1980).
The right to recover under the doctrines of alienation of affections and criminal conversation is of common-law origin, and exists independent of any statute. Holmstrom v. Wall, 64 S.D. 467, 268 N.W. 423 (1936); Moberg v. Scott, 38 S.D. 422, 161 N.W. 998 (1917). This common law origin exists despite our Legislature‘s subsequent recognition of the doctrines through various codified references.2
The recent tenor of the courts and legislatures across the country is toward the
Both Iowa and Washington have judicially abolished the action for alienation of affections. Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981); Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452 (1980). The courts of Louisiana have never recognized alienation actions. Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927), accord, Ohlausen v. Brown, 372 So.2d 787 (La.App. 1979).
California, Colorado, Connecticut, Delaware, Florida, Indiana, Michigan, New Jersey, New York, Oregon, Vermont, Virginia, Wisconsin and Wyoming have all abolished by statute the doctrine of criminal conversation.
The Supreme Courts of Iowa and Pennsylvania have abolished actions for criminal conversation in their respective states. Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978); Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976).
Money damages are not recoverable for alienation actions in six states.
In accord with these authorities, we believe that alienation of affections and criminal conversation, as viable legal remedies, are outmoded archaic holdovers from an era when wives3 were considered the chаttel of their spouse rather than distinct legal entities. Wives are not property. Neither are husbands. The love and affection of a human being who is devoted to another human being is not susceptible to theft. There are simply too many intangibles which defy the concept that love is property.
Defenses which shоuld logically prevent criminal conversation actions have, in reality, no legal effect; to wit:
[C]onsent of the wife is no defense. The fact that the wrongdoer did not know the wife was married but believed her to be single is not a defense. The fact that the wife represented herself as single is not a defense. The faсt that the wife was the aggressor is not a defense. The fact that she has been neglected or mistreated by her husband is not a defense. The fact that she and her husband were separated through his fault is not a defense.
Our Legislature has abolished adultery as a crime in South Dakota, 1976 S.D.Sess.L. ch. 158, § 22-8, thus decriminalizing the very behavior upon whiсh an action in criminal conversation rests. The courts in Fadgen v. Lenkner, supra, and Bearbower v. Merry, supra, were faced with the identical situation when they abolished criminal conversation actions in Pennsylvania and Iowa, respectively.
In Wyman v. Wallace, supra, the Supreme Court of Washington listed the following reasons for abolishing the doctrine of alienation of affections:
(1) The undеrlying assumption of preserving marital harmony is erroneous; (2) The judicial process is not sufficiently capable of policing the often vicious out-of-court settlements; (3) The opportunity for blackmail is great since the mere bringing of an action could ruin a defendant‘s reputation; (4) There are no helpful standards for assessing damages; and (5) The successful plaintiff succeeds in compelling what appears to be a forced sale of the spouse‘s affections.
Indeed, as our sister state of Iowa so recently noted, there is an “inherent and fatal contradiction in the term ‘alienation of affections.’ The alienation belies the affection.” Fundermann v. Mickelson, supra, at 791.
The underlying rationale for alienation suits, that is, the preservation of the marriage, is ludicrous. “And it is folly to hope any longer that a married person who has become inclined to philander can be preserved within an affectionate marriage by the threat of an aliеnation suit.” Id. at 791.
This is not to say that the institution of marriage should be treated with cynicism and disdain. Where, as here, however, neither party holds the marriage in the high regard that it should be held, the existence of both alienation of affections and criminal conversation as remedies fosters bitterness, promotes vexatious lawsuits, uses the marriage as a means of blackmail and character assassination, puts the marriage in the marketplace, and generally exposes the marriage to a public cleansing with a price tag attached upon it.
Of course the judicial abolishment of the common-law doctrines in question circumvents, but does not ignore, the process of stare decisis. The Supreme Court of this state has long recognized the value of this doctrine; but at the same time we have not been blind to its theoretical inherent premise of being in harmony with extant public policy. See Printup v. Kenner, 43 S.D. 473, 180 N.W. 512 (1920). To maintain antiquated rules and methods merely for the sake of consistency is akin to secluding oneself from an often volatile world. Moreover, the courts in Fundermann, Wyman, and Fadgen all concluded that overriding considerations of reality must supersede the perpetuation of alienation or criminal conversation actions. We adhere to their rationale and believе that there is a logical limitation on the intrusion by the judicial branch upon the private lives and morals of citizens.
The judgment of the trial court is reversed.
WOLLMAN, C. J., concurs.
DUNN, MORGAN and FOSHEIM, JJ., concur specially in part and concur in result in part.
DUNN, Justice (concurring specially in part, and concurring in result in part).
I would agree with the majority that the tort of criminal conversation has outlived its usefulness and should be abrogated, except as it may be shown as an essential element in breaking up a once stable marriage in an alienation of affections suit.
However, I would not abolish the tort action for alienation of affections. In fact, if adultery was not a proper element in a suit for alienation of affections, I would be loathe to strike the tort of criminal conversation from the laws оf this state. These actions have traditionally been brought in one lawsuit and the same conduct used as evidence to prove both causes of action. Thus, we are not completely abolishing the effect of adulterous conduct upon a marriage when we abrogate the action for criminal cоnversation.
Both the action for alienation of affections and criminal conversation, while common law in nature, have long been recognized as valid tort actions by our legislature and by this Court.
Finally, because we happen to be living in a period of loose morals and frequent extra-marital involvements is no reason for a court to put its stamp of approval on this conduct; and I feel certain that a case will arise in the future where some party has so flagrantly broken up a stable marriage that we would rue the day that an alienation suit was not available to the injured party.
I would concur in the majority opinion‘s result in this action for alienation of affections, because the marriage was already hopelessly dissipated before the alleged conduct of this defendant; there was no causal connection between appellant‘s conduct and the break-up of the marriage; and there was no affection to alienate. I would hold that the trial court erred in not granting appellant‘s motion to dismiss the alienation of affections suit for laсk of evidence to sustain the verdict.
I am authorized to state that MORGAN and FOSHEIM, Justices, join in this concurrence in part and concurring in result in part.